Citation Nr: 1800075	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-16 692	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for tinnitus. 

3.  Entitlement to service connection for a bilateral shoulder condition.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

B. Reed, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1968 to June 1971.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision by a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran appeared at a hearing before the undersigned in November 2016.

The issue of tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

In an October 2016 communication, the Veteran withdrew his claim of entitlement to service connection for a bilateral shoulder condition.

The Veteran's bilateral hearing loss did not have its onset in service, nor is it otherwise causally connected to his military service.


CONCLUSIONS OF LAW

The criteria are met for withdrawal of the appeal concerning entitlement to service connection for a bilateral shoulder condition.  38 U.S.C. § 7105 (2012); 38 C.F.R. §20.204 (2017).

The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided by 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  Withdrawal of an appeal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (a).  In an October 2016 statement, the Veteran unambiguously withdrew his claim of entitlement to service connection for a bilateral shoulder condition.  Therefore, a "case or controversy" with respect to the issue articulated above does not exist.  See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)).  Accordingly, this matter is dismissed.

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

If a chronic disease enumerated in 38 C.F.R. § 3.309 (a) is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Bilateral hearing loss is an organic disease of the nervous system and thus falls within 38 C.F.R. § 3.309 (a).  See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (stating "the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an '[o]rganic disease[ ] of the nervous system'".).

Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

The failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability.  A claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service."  Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993).

The Board must fully consider the lay evidence of record.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

For the following reasons, the Board concludes that service connection for bilateral hearing loss is not warranted.

The results of a February 2012 VA audiological evaluation show that the Veteran currently suffers from bilateral hearing loss for VA purposes.  38 C.F.R. § 3.385.  Thus, the current disability criterion is met. 

The Veteran has consistently claimed that he suffered noise exposure in service; in his September 2012 Notice of Disagreement, the Veteran stated that he suffered noise exposure while performing his duties as an airframe repairman, as the job required him to work with loud machinery and exposed him to helicopters in operation and loud rocket attacks.  The Veteran's DD 214 lists his Military Occupation Code (MOS) as an air frame repairman, and shows that the Veteran received a Vietnam Service medal with two Bronze Stars and a Vietnam Campaign medal with a 1960 device.  Consequently, the Board finds that the types, places and circumstances of the Veteran's service are consistent with the noise exposure he has attested to experiencing during military service.  See 38 U.S.C. § 1154(a) (2012).  Thus, the in-service incurrence criterion is met.

The remaining question is whether the Veteran's current bilateral hearing loss is related to his active service.  

The Veteran's February 1968 pre-induction examination report shows the following audiometric findings:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
5
-
10
LEFT
15
15
10
-
5

The results of the Veteran's April 1971 separation audiogram were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
-
15
LEFT
15
15
15
-
15

Comparison of the two audiograms shows bilateral threshold shifts at 2000 Hz and 4000 Hz.  However, neither audiogram indicates a hearing loss disability for VA purposes while in service. 

The Veteran underwent two VA examinations with respect to his claimed bilateral hearing loss and tinnitus.  In an April 2011 VA examination, the examiner diagnosed the Veteran with mild sensorineural hearing loss bilaterally at 4000 Hz and bilateral constant tinnitus, but did not provide an etiology opinion, stating that "[b]ecause no c-file was available for review today, [she was] unable to render an opinion without resorting to mere speculation."  The Veteran underwent another VA examination in February 2012, in which the Veteran was again diagnosed with bilateral sensorineural hearing loss and tinnitus.  With respect to the Veteran's hearing loss, the February 2012 VA examiner opined that the Veteran's hearing loss was less likely than not caused by or a result of an event in military service.  In support of that opinion, the February 2012 examiner noted the Veteran's in-service audiograms, his noise exposure in service, and his noise exposure after service as a Senior Journeyman Operator for 33 years at a power plant exposed to turbine engines with ear protection, concluding that most of his noise exposure was occupational.  The VA examination report indicates that the examiner conducted a thorough review of the claims file, and the rationale provided is consistent with the other evidence of record.  Accordingly, this opinion is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. at 302-04 (2008).

Further, the Board finds the inconsistency in the Veteran's statements regarding the onset of bilateral hearing loss lowers the probative value of these statements.  In his November 2016 Board hearing, the Veteran indicated that he experienced difficulty hearing before he left service, noting that people would have to repeat themselves a couple times before he understood them.  In his May 2014 VA Form 9, the Veteran stated that he had hearing problems since he returned from Vietnam.  Yet, the Veteran specifically denied having hearing trouble on a Report of Medical History prepared in conjunction with his separation examination in April 1971 even though he reported other medical ailments at that time.  See Buczynski v Shinseki, 24 Vet. App. 221, 224 (2011) (indicating where there is a lack of notation of a medical condition where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist).  Additionally, in a March 2002 VA treatment record, the Veteran again denied having bilateral hearing loss.  Thus, his current lay statements regarding symptoms of hearing loss in service have low probative value as they are inconsistent with earlier statements made in 1971 and 2002.  With respect to the Veteran's belief that his current hearing loss is etiologically related to acoustic trauma during military service, his statements in this regard are not competent evidence as he does not possess the requisite skill or training to address complex medical questions such as the etiology or causation of a medical condition, such as hearing loss, that is beyond lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

Ultimately, the preponderance of evidence is against a finding the Veteran's current bilateral hearing loss is the result of an in-service injury or disease.  The Board finds the February 2012 VA opinion the most probative evidence with respect to the claims on appeal.  The Veteran is not competent to address issues such as the etiology of hearing loss, and his recent reports of the onset of hearing loss symptoms during active service have low probative value due to his inconsistencies in reporting onset of hearing loss.  Thus, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claims for service connection for a bilateral hearing loss disability must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).



ORDER

The claim of entitlement to service connection for a bilateral shoulder condition is dismissed

Service connection for bilateral hearing loss is denied.


REMAND

As noted above, the Veteran underwent a VA examination in February 2012, in which the examiner opined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) a symptom associated with the Veteran's hearing loss.  However, the examiner did not provide an etiology opinion with respect to whether the Veteran's tinnitus was the result of an in-service injury or disease generally, or acoustic trauma specifically.  The claim file should therefore be returned to the February 2012 VA examiner, if available, in order to obtain an addendum opinion to clarify whether the Veteran's tinnitus is directly related to his military service.  

Accordingly, the case is REMANDED for the following action:

1.  Return the claims file to the examiner who conducted the February 2012 VA examination for an addendum opinion, if available.  If the examiner is not available, arrange for another examiner to respond to the question below.  

Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus is related to his military service, to include noise exposure in service.  

The examination report must include a complete rationale for all opinions expressed.  

2. Readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).





____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs